Excerpt:.....appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution.
- 5, where he had stated that jai narayan knew about the death of banarsi dass, when he issued the receipt, exhibit d-1, and from that he inferred that jai narayan wanted to treat the legal representatives of banarsi dass as tenants, because he issued the said receipt, knowing full well that the original tenant had died. in the rent deeds, it is clearly stated that the shop is being taken on rent by banarsi dass alone and it is not mentioned therein that he was the head of any joint hindu family. all these facts clearly establish that the plaintiffs never intended to accept the legal representatives of banarsi dass as tenants in..........as the head of the joint hindu family, consisting of himself and his sons, for carrying on the joint family business and, therefore, even after his death, the tenancy did not come to an end and the defendants continued to be the tenants of the said shop. in support of this contention, learned counsel relied on a receipt of rent dated 1st january, 1966, exhibit d-1, issued by jai narayan in favour of banarsi dass and it related to the rent of these premises for two months, i.e. november and december, 1965. according to the learned counsel, this rent was paid by brij mohan after the death of his father banarsi dass, and it was accepted by jai narayan. this acceptance of the rent by the landlord after the death of the original tenant, so argued the counsel, created a fresh tenancy in.....

Judgment:

1. On 9th November, 1956 vide rent note, Exhibit P-2, Banarsi Dass took a shop, situate in Faridabad, District Gurgaon, on rent from Jag Mohan son of Jai Narayan for a period of 11 months @ Rs.4/- per month. The tenancy was to commence from 1st November, 1956. Even after the expiry of the period of tenancy the tenant remained in possession of the property and continued paying rent to the landlord. On 5th January, 1959, another rent note, Exhibit P-1, was written by the tenant in favour of the landlord and this was also for 11 months and at the same rate of rent, namely, Rs.4/- per mensem. Banarsi Dass, subsequently, died on 14th December, 1965. On 11th April, 1966, a notice was issued by the landlord to his legal representatives asking them to vacate the premises, because the tenancy in favour of Banarsi Dass had come to an end and they were occupying the shop as mere trespassers, and in case, they did not do so, they would have to pay Rs.100/- per month as damages for use and occupation of the premises. After issuing this notice, since the shop was not vacated, a suit for possession was brought on 27th May, 1966, by the landlord and his father Jai Narayan against Brij Mohan and others, the legal representatives of Banarsi Dass, treating them as trespassers and an amount of Rs.400/- as compensation for use and occupation of the said premises for four moths was also claimed in the suit. It was alleged that by the death of Banarsi Dass, who was a statutory tenant, the tenancy came to an end, and his son Brij Mohan and other legal representatives were merely trespassers.

2. The suit was contested, by the defendants on a number of grounds. But, in the present second appeal, we are only concerned with two of them and they are covered by issues Nos. 2, 5-A and 5-B. Those issues are as follows:--

'2. Whether Banarsi Dass took the shop in suit on rent as head of joint Hindu Family consisting of Banarsi Dass and his sons defendants?

5A. Whether the plaintiffs accepted the defendants as tenants after the death of Banarsi Dass? If so, to what effect?

5B. Whether the plaintiffs are debarred and estopped from claiming that the defendants are trespassers and from maintaining this suit?'

3. All the issues framed in the case were decided against the defendants and the suit was decreed. The compensation for use and occupation of the premises was fixed at Rs.8/- per mensem and the suit was consequently, decreed for the recovery of Rs.32/-.

4. When the matter went in appeal before the learned Additional District Judge, Gurgaon, he confirmed the findings of the trial Court and dismissed the same. Against this decision, the present second appeal has been filed by the defendants.

5. The first contention raised by the learned counsel was that both the Courts below were in error in deciding Issue No. 2 against the appellants. It was urged that Banarsi Dass had taken the shop in suit on rent as the head of the joint Hindu family, consisting of himself and his sons, for carrying on the joint family business and, therefore, even after his death, the tenancy did not come to an end and the defendants continued to be the tenants of the said shop. In support of this contention, learned counsel relied on a receipt of rent dated 1st January, 1966, Exhibit D-1, issued by Jai Narayan in favour of Banarsi Dass and it related to the rent of these premises for two months, i.e. November and December, 1965. According to the learned counsel, this rent was paid by Brij Mohan after the death of his father Banarsi Dass, and it was accepted by Jai Narayan. This acceptance of the rent by the landlord after the death of the original tenant, so argued the counsel, created a fresh tenancy in favour of the legal representatives of Banarsi Dass. He also referred to the evidence of Brij Mohan, defendant, as D.W. 5, where he had stated that Jai Narayan knew about the death of Banarsi Dass, when he issued the receipt, Exhibit D-1, and from that he inferred that Jai Narayan wanted to treat the legal representatives of Banarsi Dass as tenants, because he issued the said receipt, knowing full well that the original tenant had died.

6. This contention has been repelled both by the trial Court and the lower Appellate Court and after hearing the learned counsel for the appellants, I am not inclined to hold that the finding on this point by the Courts below was in any way vitiated. Two rent deeds had been produced on the record and their perusal would show that the shop had not been taken on rent by Banarsi Dass either as the head of the Joint Hindu Family or for carrying on the joint family business. The position now taken up by the appellants seems to be merely an afterthought. In the rent deeds, it is clearly stated that the shop is being taken on rent by Banarsi Dass alone and it is not mentioned therein that he was the head of any Joint Hindu Family. Even the purpose for which it was taken, was not stated in the said deeds. It has also been found on evidence by the Courts below that the business in the shop was carried on by Banarsi Dass and no joint Hindu family business, was being run there. It has been stated by the lower Appellate Court that the defendants had been maintaining the account-books, but the same had not been produced to show that rent of the shop was paid out of the joint Hindu family funds. The account-books, according to the learned Judge, would have shown if it was a joint Hindu family business. They would have also indicated from what date the business was being carried on. On the evidence as it stands, it cannot be said that the finding of the lower Appellate Court is in any way wrong in law. This apart, there is a decision by Dua acting C. J. in Hem Raj v. Jagdish Singh, 1967-69 Punj LR (D) 142, where it was observed:

'that even if a tenant obtains lease of a given premises for the benefit of the joint family, that would not mean that the joint family as such is clothed with the status of a tenant. The tenant may have in view the benefit of a large number of his family members when he takes on rent the premises consisting of residential accommodation. But the mere benefit of the tenant's family even if they be considered as constituting a joint family, would not by itself, as a matter of law, constitute all the members as tenants of the tenanted property, clothed with all the rights and liabilities of a tenant.

Held, that even if the tenant obtains a lease of certain premises for the benefit of the joint family, he may have in view the benefit of a large number of his family members when he takes on rent the premises, but provisions of Sections 141(b), 54 and 57 of the Delhi Rent Control Act do no take this factor into account when they provide for the eviction of the tenant on an allotment of a residence to him. All the members of the family must be evicted along with the tenant when another accommodation is allotted to him.'

7. Counsel for the appellants could not cite any decision taking a contrary view. But without going into this law point, I am of the opinion that the evidence in this case is clear that the shop in dispute was not taken by Banarsi Dass either as the head of the joint Hindu family or for the joint Hindu family business.

8. Counsel for the appellants then contended that the finding of the Courts below on issues Nos. 5-A and 5-B was erroneous in law. The argument raised was that since the plaintiffs had accepted the rent from the defendants after the death of Banarsi Dass, a new tenancy came into being between them and the plaintiffs and, therefore, the latter were estopped from saying that the former were trespassers in the premises.

9. The facts mentioned above would show that after the expiry of the period of tenancy covered by rent-note, Exhibit P-2, Banarsi Dass became a statutory tenant. Thereafter, he did not vacate the premises but went on paying the rent, which was accepted by the plaintiffs. Then again on 5th January, 1959, by rent-note Exhibit P-1, another contractual tenancy came into being, which also, by efflux of time came to an end and thereafter Banarsi Dass again became a statutory tenant. Statutory tenancy, indisputably, is not heritable, but Banarsi Dass, admittedly, went on occupying the premises and paying the rent which was being accepted by the plaintiffs. He died in December, 1965. At that time, some rent was due from him and is was paid by his son Brij Mohan to Jai Narayan, by means of receipt, Exhibit D-1, dated 1st January, 1966. It is not disputed that even though a statutory tenancy is not heritable, yet the landlord is not precluded from entering into a fresh tenancy with the legal representatives of the statutory tenant. The question, therefore, is whether in this case it can be said that the parties, namely, the plaintiffs and the defendants, entered into a fresh tenancy. Undoubtedly a fresh tenancy can be created either expressly or impliedly. In the instant case, it is common ground that there is no rent-deed executed by the legal representatives of Banarsi Dass in favour of the plaintiffs. Therefore, the only point to be determined is whether from the conduct of the parties, it can be inferred that a fresh tenancy came into being between the parties to this litigation after the death of Banarsi Dass. For this purpose, learned counsel for the appellants relied on receipt, Exhibit D/1, and the statement of Brij Mohan as D.W. 5, where, as I have already mentioned above, he had stated that Jai Narayan knew at the time he issued the receipt, Exhibit D/1, that Banarsi Dass was dead. A fresh tenancy can be created only by a bilateral agreement. Both the parties should either expressly or impliedly agree to create a new tenancy. In the instant case, so far as the receipt is concerned, it is significant to mention that it was in the name of Banarsi Dass, who admittedly was dead on that date. The case of Brij Mohan, defendant, is that Jai Narayan knew that Banarsi Dass was dead when he issued the said receipt. Jai Narayan, on the other hand, in his evidence, as P.W. 5, has denied this fact. If the statement of Brij Mohan is to be believed, then it is difficult to understand as to why the receipt was issued in the name of a dead person. From that, one can legitimately draw the inference that he did not want to create a fresh tenancy in favour of the deceased's legal representatives. If he really wanted to treat then as tenants and keep them in the premises after the death of Banarsi Dass, he would have issued the receipt in the name of Brij Mohan, who was actually paying the money. According to Jai Narayan, on the other hand, he did not know about the death of Banarsi Dass and since rent for the said months was due from the deceased, he received the same from his son Brij Mohan and issued the receipt in favour of Banarsi Dass. From the receipt alone, it is not possible to hold that the landlord wanted to create a fresh tenancy in favour of the legal representatives of Banarsi Dass. This is further evident from the fact that soon after the issue of the receipt, a notice, Exhibit P-4, was issued by the plaintiffs to the defendants asking them to vacate the premises, because of the death of Banarsi Dass, who was a statutory tenant, the tenancy had come to an end and the defendants were occupying the premises as mere trespassers. Immediately after issuing the said notice, the suit, out of which the present second appeal has arisen, was filed by the plaintiffs. All these facts clearly establish that the plaintiffs never intended to accept the legal representatives of Banarsi Dass as tenants in the shop. The finding of the Courts below on this point also, in my opinion, cannot be interfered with, as the same is not vitiated by any error of law.

10. The result is that this appeal fails and is dismissed. In the circumstances of this case, however, I would leave the parties to bear their own costs throughout.